Punjab-Haryana High Court
Lovepreet Kaur vs State Of Punjab & Ors on 25 October, 2017
Author: Amol Rattan Singh
Bench: Amol Rattan Singh
CRM-M-26304 of 2016 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M26304 of 2017 (O&M)
Date of Decision: 25 October, 2017
Mukesh Gupta and another
...Petitioners
Vs.
The State of Haryana and others others
.........Respondents
CORAM: HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Rakesh Kumar, Advocate, for the petitioners.
Mr. Vikas Chopra, Deputy Advocate General, Haryana.
*****
AMOL RATTAN SINGH, J.
This is a petition filed under Section 482 of the Code of Criminal Procedure, by the two petitioners herein, seeking setting aside of the order of the learned District and Sessions Judge, Sonepat, dated 18.07.2016 (Annexure P-1), by which the order of the learned Chief Judicial Magistrate, Sonepat, dated 23.02.2016 (Annexure P-2) has been upheld.
The aforesaid order of the Magistrate was passed on an application filed under Section 300 Cr.P.C., by the first petitioner, i.e. Mukesh Gupta, Managing Director-cum-responsible person of the company, M/s ABKA Pharmacare Pvt. Ltd.
2. The contention of the first petitioner, in that application, was that an inspection having been carried out by the complainant, i.e. the Drugs Control Officer, Sonepat and other officers of his department, on 11.07.2007, at the premises of the four accused, 11 kinds of samples of different allopathic drugs were taken from the spot, of which 6 samples were sent to the Government Analyst, Haryana, with all the samples found to be not of 1 of 7 ::: Downloaded on - 10-12-2017 11:33:49 ::: CRM-M-26304 of 2016 -2- standard quality, as per the test reports received.
3. Earlier, Complaint no.3956 of 2013 was also instituted by the same complainant, arising out of a report received in respect of one of the samples sent to the Government Analyst, but the cause of action was the same, as per the first petitioner herein, all the 11 samples of drugs seized having been drawn on the same date, in the same 'raid'.
In that complaint, the first accused-applicant, Mukesh Gupta (the present petitioner no.1), was held guilty by the trial Court, as the drug bearing sample no.GSS 93/2007, which was a sample of the drug Dexamethasone AB60040T, was not found to be of standard quality by the Court. Hence, the contention of the applicant before the learned Chief Judicial Magistrate, was that the applicant (petitioner no.1 herein) already having been convicted and punished for the aforesaid offence, a second complaint arising out of the same occurrence was barred in terms of Section 300 Cr.P.C. and the applicant could not be tried for the same offence.
4. The contention of the State, on the other hand, was that Complaint no.3956 of 2013 being related to sample no.GSS 93/2007 of Dexamethasone AB60040T, with the manufacturing date of April 2006 and expiry date of March 2008, the second complaint pertaining to 6 samples drawn of different drugs altogether, was wholly a different cause of action and therefore was maintainable.
The details of the drugs stated to have been seized, as contained in the 6 other samples that were subject matter of the second complaint, i.e. Complaint no.3957 of 2013, are given as follows in the order of the learned CJM:-
2 of 7 ::: Downloaded on - 10-12-2017 11:33:50 ::: CRM-M-26304 of 2016 -3- Sr. Sample No. Name Drug Batch No. Mfg. Date Exp. Date No. 1 GSS-86/2007 Abagra 50 tablet AB70007T Jan. 2007 Dec. 2009 2 GSS-89/2007 Feel Fine 70048T June 2007 May 2010 (Cyprohepta dine Caplets) 3 GSS-87/2007 Jekal BHP 70039 May 2007 April 2009 Tablet 4 GSS-91/2007 Supacotra cap. AB70049 July 2007 June 2009 5 GSS-94/2007 Eatfine 60146 Dec. 2007 Nov. 2009 (Cyprohepta dine caplets) 6 GSS-96/2007 Abagra-50 AB70007T Jan. 2007 Dec. 2009
5. Upon considering the aforesaid contention on both sides, the learned Magistrate first recorded a finding that a sealed sample of each of the drugs seized on 11.07.2007 was sent to the Government Analyst, and 6 of the drugs were not found to be of standard quality, with three drugs thereafter also found to be of sub-standard quality, after retesting was done from the Central Drug Laboratory, Calcutta, upon an application moved by present petitioner no.1.
Thus, holding that since the first complaint leading to the conviction of the applicant before him was pertaining to a wholly different drug than the ones with which the second complaint was concerned, the learned CJM dismissed the application filed under Section 300 Cr.P.C., vide his order dated 23.02.2016.
6. Upon a revision petition having been filed against the said order, it came up before the learned District and Sessions Judge, Sonepat, who after recording the facts, including that the drugs were stated by the complainant to have been manufactured by the company of which the first petitioner herein is a Director, eventually on the same reasoning dismissed the revision petition.
3 of 7 ::: Downloaded on - 10-12-2017 11:33:50 ::: CRM-M-26304 of 2016 -4- It was also recorded by the learned revisional Court that the test reports with regard to the 6 drugs samples as were subject matter of the second complaint, were not available with the complainant at the time when the first complaint was instituted on 12.02.2008 and therefore, in terms of the ratio of the judgment of the Supreme Court in Udai Shankar Awasthi v. State of U.P. (2013) 2 SCC 435, the second complaint was maintainable.
Other judgments of the Supreme Court, to the same effect, were also cited by the learned Sessions Judge in the impugned order dated 18.07.2016, to arrive at the same conclusion as was arrived at by the learned Chief Judicial Magistrate.
7. Before this Court, it has been contended by Mr. Rakesh Kumar, learned counsel for the petitioners, that simply because the reports from the Government Analyst were received on different dates by the complainant, that did not give him a right to a separate cause of action, the raid having been conducted on the same date and therefore, as per the learned counsel, the bar contained in Section 300 Cr.P.C. was very much applicable to the case of the petitioners.
8. On the other hand, Mr. Vikas Chopra, learned Deputy Advocate General, Haryana, has argued in terms of the reasoning given by the learned Courts below, also citing the judgments cited by the learned revisional Court, those being:-
1) Udai Shankar Awasthi v. State of U.P. (2013) 2 SCC 435
2) Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 (SC) 876;
3) Mahesh Chand v. B. Janardhan Reddy, 2003(1) RCR (Crl.) 420;
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4) Shiv Shankar Singh v. State of Bihar, 2012 (1) RCR (Crl.) 14 and
5) Poonam Chand Jain v. Fazru, 2005 (1) RCR (Crl.) 600."
9. Having considered the aforesaid arguments, as also the judgments cited by learned State counsel, it is to be first noticed that before the learned Chief Judicial Magistrate, a judgment of the Supreme Court in Kolla Veera Raghav Rao v. Gorabtla Venkateswara Rao and Anr. (2011) LawSuit (SC) 117, was also cited on behalf of present petitioner no.1, wherein after noticing what is stipulated in Section 300 (1) of the Cr.P.C., it was held that the appellant in that case having already been convicted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881, could not be tried or punished on the same facts, either under Section 420 IPC or any other provisions of the IPC or other statute.
10. On the other hand, in Udai Shankars' case (supra), after discussing the law earlier settled on the issue, what was held in Shiv Shankars' case (supra), was referred to by their Lordships, the said part of the judgment having been reproduced as follows:-
"It is evident that the law does not prohibit filing or entertaining of the second complaint even on the same facts provided the earlier complaint has been decided on the basis of insufficient material or the order has been passed without understanding the nature of the complaint or the complete facts could not be placed before the court or where the complainant came to know certain facts after disposal of the first complaint which could have tilted the balance in his favour. However, second complaint would not be maintainable wherein the earlier complaint has been disposed of on full consideration of the case of the complainant on merit."
Similarly, in Mahesh Chands' case (supra), it was held as follows:-
5 of 7 ::: Downloaded on - 10-12-2017 11:33:50 ::: CRM-M-26304 of 2016 -6- "20. Keeping in view the settled legal principles, we are of the opinion that the High Court was not correct in holding that the second complaint was completely barred. It is settled law that there is no statutory bar in filing a second complaint on the same facts. In a case where a previous complaint is dismissed without assigning any reasons, the Magistrate under Section 204 Criminal Procedure Code may take cognizance of an offence and issue process if there is sufficient ground for proceeding.
As held in Pramatha Nath Taluqdar's case (supra) second complaint could be dismissed after a decision has been given against the complainant in previous matter upon a full consideration of his case. Further, second complaint on the same facts could be entertained only in exceptional circumstances, namely, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of complaint or it was manifestly absurd, unjust or where new facts which could not, with reasonable diligence, have been brought on record in the previous proceedings, have been adduced. In the facts and circumstances of this case, the matter, therefore, should have been remitted back to the learned Magistrate for the purpose of arriving at a finding as to whether any case for cognizance of the alleged offence had been made out or not."
(Emphasis applied in the present judgment) To similar effect are the judgments in Pramatha Nath and Poonam Chand Jain (supra) .
11. In the present case, in the opinion of this Court, firstly, the drugs in question in the second complaint being different to the drug that was subject matter of the first complaint, i.e. Dexamethasone, the sub-standard quality of each drug would constitute a separate offence and therefore, simply because 11 different drugs were seized, with 6 of them having been found to be of sub-standard quality, it would not constitute a single offence.
Secondly, in the light of the ratio of the aforecited judgments, it is very obvious that with the reports on the sub-standard quality of the second set of drugs not having been received at the time when the first complaint was filed on 12.02.2008, the complete material pertaining to the offences in 6 of 7 ::: Downloaded on - 10-12-2017 11:33:50 ::: CRM-M-26304 of 2016 -7- question was not available for it to have been added in the first complaint and therefore, upon such material (reports of the Government Analyst) having become available, the second complaint would be very much maintainable.
Hence, I find no error whatsoever in the order of either the learned Chief Judicial Magistrate, or of the learned revisional Court, in dismissing the application filed by the first petitioner herein, seeking the benefit of Section 300 Cr.P.C.
12. Consequently, finding no merit in this petition, it is dismissed. The interim order dated 02.08.2016, by which passing of the final order in the second complaint was stayed by this Court, stands vacated, with the trial Court to now proceed with the complaint wholly on its own merits.
It is to be stated here that the observation of this Court with regard to the drugs having been found to be of sub-standard quality, is only in the context of the reports stated to have been received by the complainant, on the basis of which the second complaint was filed. The observation will not be taken by the trial Court to be any comment by this Court on the correctness or otherwise of the reports, which would naturally be looked into by that Court wholly on the merits of the evidence produced before it.
October 25, 2017 (AMOL RATTAN SINGH)
vcgarg JUDGE
Whether speaking/reasoned Yes
Whether Reportable Yes.
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